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Bill would strengthen whistleblower protections for military personnel

Tom Devine, legal director, Government Accountability Project

Four senators have introduced a bill to strengthen protections for military
whistleblowers. They say it would encourage service members to report sexual
assault as well as fraud, waste and abuse.

"Improving the military's whistleblower system is an important step toward
encouraging whistleblowers to report fraud, waste, and other misconduct,
especially sexual assault," said Sen. Mark Warner, who introduced the bill with
Sens. Susan Collins (R-Maine), Tim Kaine (D-Va.) and Chuck Grassley (R-Iowa). "Our
military men and women should trust that our justice system will protect them and
provide an environment free of retaliation."

GAP Legal Director Tom Devine told Federal Drive with Tom Temin and Emily
Kopp Monday the problem with the current law is that it's toothless when
it comes to the military.

"It's got some limited free speech rights and probably an appropriate context
for
where it's responsible to dissent for soldiers that's more limited
than the civilian employees," he said. "But when it is important to dissent, the
stakes are probably higher and these rights don't have anything to back them up."

Under the current law, service members don't have the opportunity to have a day
in court, they lack any administrative due process and there are no legal
standards for how the whistleblower can win or lose a case.

"This is a law that creates more reprisal victims than it helps," Devine said.
"And it's in the area where fraud, waste and abuse can have the highest
consequences. Something's got to give."

Tom Devine, legal director, Government Accountability Project

What sparked this new bill, according to Devine, is the wave of sexual assaults
against service members that has been reported in the press over the last year.

It's not just enlisted personnel facing reprisals for reporting abuse. Devine said
the lack of due process extends throughout the chain of command.

"It extends pretty much wherever someone challenges an abuse of power within the
military bureaucracy," Devine said. "A number of the whistleblowers are enlisted
people who are challenging sexual harassment directed against themselves or
colleagues, but some of them were officers who are fighting sexual harassment. ...
Wherever there is power, it can be abused."

"It is always a tougher lift for people who are legitimately in an environment
that requires more discipline, more blind faith obedience because of the context
of the few organizations' mission," he said. "We don't really have a gripe with
the fact that the context for freedom of dissent are much more narrow in the
military than they are in the civilian sector. The problem is when it is necessary
to blow the whistle, such as Abu Ghraib or the My Lai massacre or some sort of
corruptions or screwups or intelligence breakdowns that can threaten the troops,
the consequences are life and death stakes that are at risk here. We need
whistleblowers more than in other sectors."

Last year, scientists in the Public Health Service — the doctors who oversee
food and drug safety — were moved from the civilian whistleblower rights
into the military whistleblower protection. This new law will impact them as well.

The bill appears to have bipartisan support and GAP is optimistic for its future.

"It's just how many more teeth will we get in it," Devine said. "Right now, it's
kind of like each chamber of Congress has a good half-a-loaf. Both bills would be
closing loopholes that were closed in the Whistleblower Protection Enhancement
Act. Both bills would increase the statute of limitations from the current 30
days, which was hopelessly unrealistic to 180 days — six months. The House
bill would raise the burdens of proof, so that you have the same rules of the game
to prove your case as the civilian workers."

In addition, Warner has introduced amendments to the Senate bill that would
guarantee whistleblowers have an administrative day in court.

"Right now, what they do is wait for an inspector general investigation," Devine
said. "This would give them a chance to actually get in there and defend
themselves, confront their accusers, present witnesses and evidence on their
behalf and have a fighting chance for justice when they defend the public on the
battlefield."